Examples of Regulation 102 BTS waiver applications for an applicant who is a resident of the United-States

For the purpose of the following examples, we have not made reference to the requirements for Canada Pension Plan contributions or Employment Insurance premiums that may be applicable to the income discussed.

Example A

Facts:
1) Mr. Carpenter, a US resident, will be coming to Canada in May 2009 to oversee the construction of a particular film set for Film Productions Ltd.
2) Construction of the set is expected to take 195 days.
3) Mr. Carpenter is an employee of Film Productions Ltd.
4) He will receive $9,000 in respect of the services he will perform in Canada and will have no other income from Canadian sources during the calendar year.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would be granted because:

• the total remuneration from Canadian employment does not exceed $10,000 during the calendar year.

The length of his stay in Canada and the legal status of his employer are not relevant in this example.

Example B

Facts:
1) Mr. Day, a US resident, will be present in Canada for 87 days from August to the end of October 2009 to work on a film shoot.
2) Film Distribution U.S. Ltd.'s subsidiary, Film Production U.S. Ltd., produces various films.
3) Film Production U.S. Ltd. is considered to be a resident of the US under the Convention.
4) Film Production U.S. Ltd is coming to Canada to shoot some scenes for their current film.
5) Film Production U.S. Ltd. does not intend to return to Canada to shoot other films. Editing and other production work is to be completed in California.
6) Film Production U.S. Ltd., based on the facts, is considered to not have a permanent establishment in Canada.
7) Mr. Day is considered an employee of Film Production U.S. Ltd.
8) He will receive $50,000 from Film Production U.S. Ltd in respect of the services he will perform in Canada.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would be granted even if his income exceeds $10,000 because:

• the employee will not be present in Canada for more than 183 days; and
• the remuneration is not to be borne by either:
  • an employer resident in Canada; or
  • a permanent establishment or fixed base of the US employer in Canada.

Example C

Facts:
1) Mr. White, a US resident, will be coming to Canada on September 1, 2009, to work on a film shoot.
2) He is an employee of the US company Film Productions Ltd. and will receive $110,000 in respect of the services he will perform in Canada.
3) Mr. White has confirmed that he will be present in Canada until the end of 2009 (122 days) to work on the film.
4) In addition, Mr. White previously worked as an independent consultant on another film in 2009, which required that he be present in Canada for 90 days.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would not be granted because:

• the remuneration exceeds $10,000; and
• the employee will have been present in Canada for more than 183 days in the 2009 calendar year (i.e. 122 + 90 = 212 days).

Example D

Facts:
1) Ms. Blue, a US resident, will be present in Canada for 56 days in July and August 2009 to work on a film shoot.
2) Ms. Blue is an employee of Film Distribution Inc., a US corporation.
3) Film Distribution Inc.'s subsidiary in Canada, Film Canada Ltd., will produce the film on which Ms. Blue will be working.
4) Film Canada Ltd. is considered to be a resident of Canada under the Convention.
5) For the purposes of this film, Ms. Blue is loaned to Film Canada Ltd. and will provide her services under the direction and control of Film Canada Ltd., and is determined to be an employee of Film Canada Ltd. for this period (employer/employee relationship).
6) Ms. Blue will receive $75,000 from Film Distribution Inc. in respect of the services she will perform in Canada and this will be charged back to Film Canada Ltd.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would not be granted because:

• the remuneration exceeds $10,000; and
• the remuneration is to be borne by a Canadian resident employer, Film Canada Ltd.

Example E

Facts:
1) Ms. Reid, a US resident, will be present in Canada for 57 days in June and July 2009 to work on a film shoot as an employee of Film Distribution U.S. Ltd.
2) Film Distribution U.S. Ltd.'s subsidiary in Canada is Film Production Canada Ltd.
3) Film Production Canada Ltd. is considered to be a resident of the US under the Convention.
4) Film Production Canada Ltd.'s sole purpose is to produce this particular film, and all of the filming and other related production work is to be completed in Canada.
5) For the purposes of this film, Ms. Reid performs services for Film Production Canada Ltd.; however, an employee-employer relationship continues to exist with the US parent company.
6) Ms. Reid will receive $57,000 from Film Distribution U.S. Ltd. for the services she will perform in Canada.
7) Her remuneration will be charged back to Film Production Canada Ltd.
8) Based on these facts, the US parent corporation does not have a PE in Canada.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would be granted even though her remuneration exceeds $10,000, because:

• the employee will not be present in Canada for more than 183 days; and
• the remuneration will not be borne by either:
  • an employer resident in Canada; or
  • a permanent establishment of the US employer in Canada.

Example F

Facts:
1) Ms. Reid, a US resident, will be present in Canada for 57 days in June and July 2009 to work on a film shoot as an employee of Film Distribution US Ltd.
2) Film Distribution U.S. Ltd.'s subsidiary in Canada is Film Production Canada Ltd.
3) Film Production Canada Ltd. is considered to be a resident of Canada under the Convention.
4) Film Production Canada Ltd.'s sole purpose is to produce this particular film and all of the filming and other related production work is to be completed in Canada.
5) For the purposes of this film, Ms. Reid will be loaned to Film Production Canada Ltd.; however, an employee-employer relationship will continue to exist with the US parent company.
6) Ms. Reid will receive $57,000 from Film Distribution U.S. Ltd. for the services she will perform in Canada.
7) This remuneration will not be charged back to Film Production Canada Ltd.
8) Based on these facts, Film Distribution U.S. Ltd. would have a PE in Canada.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would not be granted because:

• the remuneration exceeds $10,000; and
• the remuneration will be borne by a permanent establishment of the US employer in Canada.

Example G

Facts:
1) Mr. White, a US resident, will be coming to Canada on April 15, 2009, to work on a film shoot.
2) He is an employee of the US company Film Productions Ltd. and will receive $85,000 in respect of the services he will perform in Canada.
3) Mr. White has confirmed that he will be present in Canada until September 15, 2009 (154 days) to work on the film.
4) In addition, Mr. White previously worked as an independent consultant on another film in 2008, which required that he be present in Canada for 45 days, from September 30 to November 13, 2008.

Waiver determination

Under the Regulation 102 BTS Waiver Guidelines, a waiver would not be granted because:

• the remuneration exceeds $10,000; and
• the employee will have been present in Canada for more than 183 days in the 12-month period September 30, 2008 to September 29, 2009 (154 + 45 = 199 days)